A blog on eminent domain, land-use, and related matters.

One Reason Why Precondemnation Offers Are So Often Lowballs

We recommend that you read a new article, Protecting Private Property Rights After the Public Use Ship Has Sailed, in the ABA publication, Litigation, Vol. 34, No. 1, Fall 2007, p. 25, by Charles B. McFarland, a practicing lawyer who gives us a practitioner’s perspective on eminent domain. Of particular significance is McFarland’s astute exposition of the reasons why precondemnation offers are so often too low. His words, at p. 30 of his article, speak for themselves.

“The underlying principle of the takings clause is that public burdens should be borne by the public and not by individual property owners. Therefore, it is critical that this calculus include the full magnitude of the burden to be imposed on the property owner as a result of the taking. Too often, however, it does not. The proponents of public projects have an incentive to understate the property acquisition costs associated with a project to facilitate its approval. It is particularly easy to understate or omit damages to property that is not acquired but will suffer a negative impact from the project. When the true cost of the acquisition is revealed through the judicial process, usually years later, these same proponents blame the property owners, the attorneys representing them, or juries for the cost overruns. In fact, these overruns are the direct and natural result of their own conduct in failing to assess the compensation question fully.”